The rule of law and the ICC: is Libya ‘unable’ to try Saif al-Islam Gaddafi?

In substantive terms, the fulcrum of the matter is seen to be the requirement of ‘complementarity’ within the ICC Statute, under which a case will be rendered inadmissible under Article 17(1), where:

(a)         the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable generally to carry out the investigation or prosecution ;

(b)        the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c)         The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the court is not permitted under Article 20(3); and

(d)         The case is not of sufficient gravity to justify further action by the Court.

One aspect of the debate as currently presented on three major international law blogs, Opinio Juris, LieberCode and EJIL: Talk! concerns the interaction of an Article 17 challenge to admissibility – as carried out according to the procedure in Articles 18 and 19 – with other international law obligations incumbent on Libya. Although Libya is not a signatory to the ICC Statute, it has been ordered to cooperate with the Court under operative paragraph 5 of Security Council Resolution 1970 of 26 February 2011. This means complying with the obligation to surrender Gaddafi to the Court on presentation of a valid arrest warrant under Article 89. The question currently being debated by figures such as Julian Ku, Kevin Jon Heller, Jens Ohlin and Dapo Akande is whether Libya is able to launch such a challenge before ‘cooperating’ with the Court and surrendering Gaddafi.

While the bloggers raise an important point, this blog post is concerned with an issue that appears further down the line: the challenge to admissibility itself. Were Libya minded to argue the point – as opposed to simply ignoring any directive by the Court whilst trying (and likely executing) Gaddafi – it would almost certainly claim that as it was willing to try Gaddafi, the matter would be inadmissible under Article 17(1)(a) of the ICC Statute. The question that weighs on my mind, however, is whether any trial offered by Libya is capable of fulfilling the second condition of this provision: is Libya ‘unable’ to try Gaddafi?

The ‘inability’ condition of Article 17(1)(a) is not one that has previously been considered by the Court, but some guidance as to its use is provided in Article 17(3), which states that:

In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Clearly, the new Libyan government has been able to obtain custody of the accused. Evidence of his crimes is apparently legion. But what does the Statute mean when it says ‘otherwise unable to carry out its proceedings’? The situation may perhaps be analogised with that of Sudan, which at one stage appeared likely to challenge the admissibility of proceedings brought as a consequence of the referral of the situation in Darfur to the Court by Security Council Resolution 1593 of 31 March 2005. This did not sit well against the following analysis from the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights in Darfur (chaired by the late and much lamented Antonio Cassese):

The Sudanese justice system is unable … to address the situation in Darfur. This system has been significantly weakened during the last decade. Restrictive laws that grant broad powers to the executive particularly undermined the effectiveness of the judiciary. In fact, many of the laws in force in Sudan today contravene basic human rights standards (UN Doc S/2005/60, para 586).

Granted, the Prosecutor’s unwillingness to concede inadmissibility with respect to Darfur arose in part from the danger of impunity that existed within the Sudanese criminal justice system as it then stood (see, for example UN Doc S/PV.5216). But this goes to unwillingness to prosecute, not inability. What significance then do we attribute to the Commission’s identification of the wider anaemia that characterised the Sudanese judiciary and its conclusion that ‘the Commission is of the opinion that the Sudanese courts are unable … to prosecute and try the alleged offenders’?

One hypothesis is this: when Article 17(3) of the Statute links admissibility to the ‘substantial collapse’ of a country’s judicial system and its inability the ‘otherwise … carry out its proceedings’, one aspect of that system to which it refers is the capacity to offer a fair trial to the defendant. This reading consistent with the imperative in the Statute’s Preamble that ‘[t]he States Parties to this Statute [resolve] to guarantee lasting respect for and the enforcement of international criminal justice’.

How might this be applied to Libya? The country has just emerged from a particularly brutal six month long civil war that split it more or less in two. Prior to this, it was controlled by a dictatorship headed by a man whom most commentators agree was at the very least mentally unbalanced, aided by a secret police that controlled a vast network of domestic informants and which was capable of carrying out assassinations of Libyan refugees abroad. Dissent was illegal and punished summarily. Since 1981, ‘revolutionary committees’ have been encouraged to conduct public trials without legal safeguards. These frequently violated the rights of due process, of legal representation and of appeal.  Perhaps most damningly of all, in 1981 the private practice of law was abolished and all lawyers became the employees of the Secretariat of Justice: consequently, the overwhelming majority of Libyan natives with legal training have for the past 30-odd years been in the service of the regime. It seems unlikely that they would or could be co-opted to form the core of a post-Gaddafi judicial system.

As sad as it is, this country has for four decades known little to nothing of the rule of law. What little of a judicial system it may be said to possess is in a state of ‘substantial collapse’, as stipulated in Article 17(3). The idea that a functioning legal infrastructure could be hastily constructed for the benefit of Gaddafi – the scion of a despised and fallen regime – is frankly unrealistic. This renders the following statement by Prosecutor Moreno Ocampo during his recent visit to Tripoli all the more perplexing:

The standard of the ICC is that it has to be a judicial process that is not organised to shield the suspect …  and I respect that it’s important for the cases to be tried in Libya … and I am not competing for the case … There are so many different traditions, it is difficult to say what is fair.

The Prosecutor is incorrect. In the first place, his mention of ‘a judicial process that is not organised to shield the suspect’ is a reference the unwillingness standard provided by Article 17(1)(a) of the Statute. Whilst this is a standard, it is by no means the only standard of Article 17. He remains mysteriously silent as to whether Libya is ‘unable’ to try Gaddafi, the question I raise here. In the second, the mention of ‘different traditions’, in an apparent attempt to inject a measure of cultural relativism into the ideal of the rule of law, is inconsistent with the concept of the ICC as a whole: an institution capable of imposing a uniform standard of criminal justice with respect to the most serious of offences known to humanity.

If what is alleged of Saif Gaddafi is true, he is richly deserving of punishment. But it would appear clear that from the perspective of the ICC Statute, were the Court to insist on trying Gaddafi and enforcing the terms of Security Council Resolution 1970, the case would be admissible and any refusal to comply by Libya a breach of the rules of international society. The current approach of the Prosecutor – whilst it may enhance the spectacle of the Gaddafi family’s fall – does little for the rule of law, nor the nascent institutions of international criminal justice.